Top UK legal figures say nothing in the Belfast Agreement prevents UK leaving European human rights treaty

Policy Exchange says that the United Kingdom can leave the European Convention on Human Rights (ECHR) – and continue to meet its obligations under the Good Friday Agreement and other deals it has entered into with the EU.

Comments last week from the Reform UK leader about the UK quitting the treaty have reignited a debate about whether it is necessary for the UK to leave the ECHR to tackle illegal immigration. They also prompted outrage from nationalist politicians in Northern Ireland – who said it would tear up the peace deal.

Now a report from the conservative think-tank Policy Exchange says it has dismantled the “groundless claim that the Belfast Agreement forecloses this course of action”

The think tank report argues that the United Kingdom can leave the ECHR – and protections can be put in place for Northern Ireland’s domestic legislation, which will ensure that local institutions don’t abuse their powers. The treaty was written into the agreement to ensure that Assembly legislation was compliant with European human rights law.

Policy Exchange argues that “nothing in the UK’s commitments to the peace process in Northern Ireland requires it to remain a part of the ECHR. Of the two agreements which make up the GFA, one does not refer to the ECHR at all and in no way implies that the UK is forbidden from leaving the ECHR; and the other does refer to the ECHR, but these references all concern the domestic law of Northern Ireland and the need to provide assurances to the different parties that they will be secure from abuse of devolved power by institutions like the Northern Irish Assembly and Executive Committee, and public bodies like the Police Service of Northern Ireland”.

It says that assurances “can be provided for in several ways after a UK withdrawal from the ECHR, such as by maintaining the Human Rights Act and the Northern Ireland Act in relation to the political institutions of Northern Ireland”.

The reports authors also argue that there is nothing the Windsor Framework to prohibit the UK quitting the ECHR, stating that the references to the convention in the UK-EU Trade and Cooperation Agreement “confirm moreover that the EU (including Ireland) have in effect agreed that the UK is entitled to leave the ECHR and that it would not breach the Belfast Agreement if it left”.

A commitment to no “diminution of rights” was included in the NI Protocol / Windsor Framework, and has resulted in UK legislation being struck out in Northern Ireland on issues such as legacy and immigration. For example, the High Court in Belfast last year ruled that the last government’s Rwanda plan was not compatible with the deal, and therefore not applicable in Northern Ireland.

Professor Richard Ekins KC (Hon), one of the authors of the paper and Head of Policy Exchange’s Judicial Power Project, says public debate about human rights law reform has been distorted by the repeated assertion that withdrawal from the ECHR would breach the Belfast (Good Friday) Agreement.

“In fact, neither the letter nor the spirit of the Belfast Agreement in any way requires the UK – or Ireland – to remain within the ECHR. And the agreements reached with the EU after Brexit confirm the point, leaving it open to the UK to choose to leave the ECHR”, he said.

Lord Faulks KC, a former Justice Minister in the UK government, said the paper has, for the first time, provided “a scholarly and thorough analysis” of the agreements, especially the Good Friday Agreement, “showing clearly that they do not foreclose, or otherwise frustrate, the UK choosing to leave the ECHR.”

He added: “It seems, in the current climate, that a political party that refuses to leave the ECHR or concludes that it is “too difficult” is unlikely to gain the support of the electorate at the next election. The authors of this paper have provided detailed analysis as to how the “difficulties” involved are, in fact, no impediment to a decision to leave.”

The report has the backing of a range of key legal figures including Lord Stewart KC, former Advocate General for Scotland and Rt Hon Sir Patrick Elias, a retired Lord Justice of Appeal, Rt Hon Sir Patrick Elias and Lord Faulks KC, former Justice Minister. The paper is praised from Lord Alton of Liverpool, Chair of the Joint Committee on Human Rights.